Last month Rasta Imposta, a costume manufacturer, sued Kmart for copyright infringement and other claims based on Kmart’s sale of banana costumes.
For several years, Kmart has bought Halloween costumes, including banana costumes, from Rasta Imposta, but this year, Kmart purchased its costumes from another supplier.
In its complaint, Rasta Imposta claims:
The Kmart Totally Ghoul Costume has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar to the Banana Design.
Of course, one banana costume has to look relatively similar to another – otherwise the costumes wouldn’t look much like bananas. While realistic depictions of animals or other natural items can be protected by copyright, the scope of copyright protection in such works is narrow.
That is, only the artist’s particular original and creative expressions of the common attributes of a natural subject (e.g., a banana or a raccoon) or a common theme or stock image (e.g., Santa Claus or the Eiffel Tower at night) may be protected by copyright.
For example, when one artist who had made a lifelike jellyfish glass-in-glass sculpture sued another artist for selling similar sculptures, the court held that there was no copyright protection for the idea of producing a glass-in-glass jellyfish sculpture or for the elements of expression that naturally follow from the idea of such a sculpture, such as jellyfish physiology.
Similarly, when different photographers shot marketing photographs of Skyy’s blue vodka bottle, the court found that there was no infringement, holding that the close resemblance of the photos resulted from the idea of creating a product shot of the Skyy bottle.
Thus, in the Kmart case, the court will be faced with the question of whether or not Kmart’s new costume copies elements of Rasta Imposta’s costume that don’t naturally follow from the idea of a banana costume.
The lesson for those who create visual works based on items in nature or stock images is that you should focus on contributing your own original expression, above and beyond the elements that naturally follow from the idea of the work, so that your work will more likely be protectable by copyright.
Please feel free to contact us if you have any questions about copyright protection or if you need help registering or enforcing your copyrights.
